Hope for justice hasn't died with key Adarsh accused

Legal experts say the death of former Congress legislator Kanhaiyalal Gidwani will not have much impact on the case and there's no reason for the other accused to breathe easy

Scam-tainted politicians dying their natural deaths while the wheels of justice spin in slow motion are not rare occurrences in this country. But the demise of former Congress legislator Kanhaiyalal Gidwani — who was chargesheeted in the Adarsh Society scam — is unlikely to make things easier for the other high-profile accused in the case. It’s certain that Gidwani’s demise following that of former Maharashtra Chief Minister Vilasrao Deshmukh will have implications on the proceedings.

Kanhaiyalal Gidwani

But, the focus will now shift towards people like Ashok Chavan — also an ex-CM — union home minister and former CM Sushilkumar Shinde, Sunil Tatkare and Rajesh Tope (both were ministers of state for urban development when the Adarsh project was in its nascent stages), besides top bureaucrats from IAS and state cadres. In the absence of Deshmukh and Gidwani, the onus will now be on these people to clarify certain matters during the impending cross-examination, a government official said.

Gidwani was the chief promoter of the controversial society in Colaba. Most of the letters by the association addressed to the government and other agencies were drafted by Gidwani, which have remarks like ‘put up immediately’, ‘please put up’, ‘please expedite’, or ‘put up the file’ from the then chief minister and other ministers, an official who was privy to the Adarsh files a few years ago, told this newspaper.

Ashok Chavan

Be it the inquiry commission or the courts, where the case is at sundry stages, clarifications on the comments would certainly be sought, and the absence of Deshmukh and Gidwani will be felt.

CBI had charged Gidwani under Sections 120B, 420, 467, 471 of the Indian Penal Code, Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 3 of the Benami Transaction (Prohibition) Act, 1988. He was accused of playing a crucial role in securing allotment of flats in favour of public servants who dealt with the file. Gidwani had three apartments in the society – one in his name, and two in the names of his sons Kailash and Amit.

Speaking to MiD DAY, a CBI official who is handling the Adarsh case, said, “Cognisance is taken of the offence and not the offender. If a person has committed a crime, his death will not make any difference to the prosecution’s case.”

Towering scandal: With the death of key accused Kanhaiyalal Gidwani in the Adarsh Society scam, all focus will now shift to Ashok Chavan, union home minister and former CM Sushilkumar Shinde, Sunil Tatkare and Rajesh Tope. File Pics

He added, “As evidence relating to the commission of crime has already been collected by CBI, the trial will proceed smoothly against the other accused in the case.”

When asked if the death would have any impact on the operations of the state appointed inquiry commission, the officer refused to comment stating that this was a civil issue and CBI is probing criminal charges.

“The death of Vilasrao Deshmukh and Kanhaiyalal Gidwani will not affect the case. As per Section 32 of Indian Evidence Act their statements are adequate and will be reserved. Only the files pertaining to the deceased will be closed,” said another CBI official on condition of anonymity.

Senior public prosecutor Ejaz Khan is arguing the Adarsh case before the special CBI court and the matter at present is at pre-cognisance state. Additional legal advisor for CBI, K Sudhakar, who is also appearing in the case, chose not to comment on the matter.

Legal angle The main charge in the Adarsh case is of conspiracy. So, all the accused have played a part in the scam, and that is the prosecution’s allegation. Therefore, even if one of the accused passes away, the rest have to face trial and the prosecution proceeds with the matter. Also the state commission inquiry will continue and the panel will come to an appropriate conclusion taking into account all the evidences. If they find Gidwani or Deshmukh guilty, they will pronounce their observations and findings, and the case will stand abated.— Senior advocate Adik Shirodkar

The case against the two deceased will abate in the trial court, and their deposition before CBI is inadmissible. As far as the inquiry commission goes, evidence given under the Inquiry Act is barred in a criminal trial.— Noted criminal lawyer Abad Ponda

It may be a bit alarming that two important people allegedly involved in Adarsh scam have passed away within short intervals while the investigation and the court proceedings are at a delicate state. Incidentally, both of them died natural deaths and there are no apprehensions of any foul play. Nonetheless the legal fallout of deaths is in any given case causes abatement of trials vis-à-vis the deceased. Since this case has several loose threads, the exit of two persons involved may not make a substantial difference. One must bear in mind that neither of the deceased was a witness in the case, and therefore their versions, howsoever implicating or exonerating with respect to any other person or accused, is not deemed evidence.— Senior criminal lawyer Majeed Memon